UI Forum (ADP Unemployment Group)

Third Quarter 2015

Best Practices Tips - Social Media Discharges

There is a growing trend of employees spending a significant amount of their work time using social media such as Facebook, YouTube, and Twitter rather than on their job functions. According to sources such as Forbes.com, there is also a growing trend of employees using social media to make employment-related complaints or statements that may cause their employers embarrassment or damage their employers’ reputations. It is generally known that such actions can result in discharge from employment, but can they also result in a disqualification from unemployment benefits? The answer from state unemployment agencies: sometimes yes – and sometimes no. It depends on the situation. Here are best practice tips for employers seeking to obtain a “yes’ on this question.

Social Media Policy
Generally, state unemployment agencies require that, for an employee to be disqualified from benefits, a discharged claimant must be aware that his or her actions could result in discharge. A clear and unambiguous policy which sets employer expectations regarding the use of social media, both on and off the job, can meet this notice requirement.

On-the-Job Use of Social Media
Employees who use social media at work for personal reasons can be disqualified from benefits. However, unless the usage causes significant loss of work time, many unemployment agencies will not disqualify the employee from benefits unless the employer provided a warning prior to discharge. As well, employers will need to provide proof that the claimant spent his work time on social media. Payroll records can be submitted to prove the claimant was at work at the time of their social media usage. The best evidence of usage includes logs of Internet activity, which proves that the claimant was the person who viewed the websites. Evidence such as personal login information is particularly helpful.

Off-the-Job Use of Social Media
Employers can encounter difficulty in disqualifying benefits when an employee protests a discharge for off-the-job use of social media. Here are some steps you can take: First, prove that the claimant made damaging statements against the employer. This can be difficult because people frequently use a name or title other than a given name when using these websites. You should be prepared to prove that the claimant is the one who made the comment.

The second step is to prove that the claimant’s actions were “connected with the work.” In other words, prove that the claimant’s actions were harmful or detrimental to your business or damaging to your reputation. Proving harm to the business can also be difficult, but witness statements (at the claims level) and witness testimony (at the hearing) are useful. The witnesses should be prepared to state first-hand that the claimant’s statements caused harm to the business. For example: disruption in the workplace or within the chain of command that caused customers to stop giving you business, or caused unwarranted negative publicity. If you have instituted a social media policy, it may be helpful to provide the following: the policy, the claimant’s acknowledgement of the policy, and proof that the claimant’s actions violated the policy.

Finally, be prepared to address the question of whether the claimant’s actions were intentional. While the act of posting on a website is intentional, the question becomes whether the claimant intended to cause harm by his or her actions. This can be easy to determine when an employee posts an obviously negative comment, but it can be more difficult when the comment or posting itself is not obviously harmful, but still resulted in harm to the business. If a posting is not obviously detrimental, you may want to consider a warning rather than immediate discharge, especially if you plan to protest an unemployment claim.

State Updates

Arkansas: On March 17, 2015, Arkansas Governor Asa Hutchinson signed House Bill 1489 (becoming Act 412) that will reduce the number of weeks a claimant can collect unemployment benefits from 25 to 20. Arkansas had previously reduced benefits from the typical 26-week maximum to 25 weeks.

Kansas: The Governor of Kansas signed SB 154 into law May 20, 2015. The bill amends the Kansas UI Act in several ways. While the law becomes effective July 1, 2015, portions of the bill related to employer contributions and tax rates will actually be effective in 2016.

The new law will make changes to the tax rates for new employers and employers with a positive rating experience.

The minimum weekly benefits will remain equal to 25 percent of the maximum weekly benefit.

The maximum weekly benefit cap, starting July 1, 2015, will be the greater of either $474, which is the current maximum weekly benefit, or 55 percent of the average weekly wages paid to employees in insured work during the previous calendar year.

Louisiana: Beginning January 1, 2016, the Louisiana Workforce Commission will require additional information from employers when filing their quarterly wage and tax report. The following fields will be available to answer as soon as July 1, 2015, but will not become mandatory until January 1, 2016.

North Dakota: North Dakota has enacted HB 1212, effective August 1, 2015. This legislation effectively permits UI benefits to be awarded to an employee who voluntarily quits their employment due to being stalked by a co-worker. For the purposes of UI benefits, stalking must be documented in the same manner as domestic violence in order for the reason to qualify as a good cause reason to leave employment and qualify for benefits. This means a claimant must provide the Department with a law enforcement record related to the incident, or provide an affidavit from a licensed counselor, licensed social worker, a director of a domestic violence center or advocacy, or a licensed attorney. Tax rated employers will be relieved of charges to their account pursuant to 52-04-07(1) for allowances in these situations as long as the employer is not at fault for causing or permitting the stalking.

Oregon: The Governor of Oregon signed HB 2440 into law on 5/20/2015. The bill has language that “declares an emergency” therefore the law became effective the day it was signed. In part it amends ORS 657.150, effectively negating the portion of OAR (Oregon Administrative Code) 471-030-0017 that addressed back pay awards. Back pay means payment awarded as reimbursement by an employer for loss of wages during a period for which no services were performed. Under HB 2440, back pay awards are now considered remuneration for the purposes of UI benefits in Oregon. Previously, back pay awards in Oregon were not considered remuneration, so a person separated from employment and then reinstated could collect both UI benefits for the period of unemployment and any back pay award negotiated as part of the reinstatement.

Disaster Unemployment Assistance (DUA)

Disaster Unemployment Assistance (DUA) is a partnering program between the USDOL and FEMA to provide funds to state UI agencies for the payment of UI benefits under certain circumstances. It provides disaster unemployment assistance to individuals who have lost employment as the result of a major disaster and are NOT otherwise eligible for regular UI benefits.

To initialize the DUA program, the President must first make a formal declaration following a major disaster. Individuals are eligible if they lived, worked, or were scheduled to work in the affected areas and:

no longer have a job or place to work; or

cannot reach the place of work; or

cannot work as the result of damage to the place of work; or

cannot work due to injury sustained in the disaster

became the bread-winner or major supporter of a household due to the death of head of household resulting from the disaster

DUA benefits are only payable during the Disaster Assistance Period (DAP), not to exceed 26 weeks. The weekly benefit amount for which the person may be eligible is determined by the governing laws in the state in which the claim was filed. Any benefits claimed under the DUA program are 100 percent federally funded, which means employers’ UI accounts will not be charged.

Oklahoma: Asthe result of severe storms, flooding, and tornadoes during the period of May 5-10, 2015, a Presidential disaster declaration was issued for the counties of Cleveland, Grady, and Oklahoma (county). The deadline for filing a DUA claim is July 1, 2015. Persons are eligible for DUA only if they exhaust regular unemployment benefits or if they do not qualify for benefits under the regular UI program. If a person is unemployed due to a disaster and qualifies under the regular program, benefits will be paid under the regular program first. State UI laws vary regarding non-charging for benefits paid under the regular program when the separation is due to a disaster. However, the Oklahoma Employment Security Commission provides relief of charges to employers for disaster-related regular UI claims.

Texas: Presidential disaster areas were declared in Harris, Hays, and Van Zandt counties in Texas resulting from severe storms and flooding that began on May 4, 2015 and continued for an extended period of time. The deadline for filing a DUA claim is July 1, 2015.

Persons are eligible for DUA only if they exhaust regular unemployment benefits or if they do not qualify for benefits under the regular UI program. If a person is unemployed due to a disaster and qualifies under the regular program, benefits will be paid under the regular program first. The Texas Workforce Commission provides for relief of charges to an employer for any regular UI disaster-related claims.

This communication is intended solely for the use of the individual to whom it is addressed and may contain information that is privileged, confidential or otherwise exempt from disclosure. The information provided in this communication is for informational purposes only and not for the purpose of providing legal, accounting, or tax advice. The information and services ADP provides should not be deemed a substitute for the advice of any such professional. Such information is by nature subject to revision and may not be the most current information available.